TNAG-1862-FCO40-2639-Future-of-Hong-Kong-Basic-Law-1989 — Page 143

CONFIDENTIAL

020355*

MDLIAN $820

6. THE DRAFTERS AGREED THAT THE

INTENTION WAS CLEARLY TO MAINTAIN

ONLY THE CURRENT RESTRICTION ON THE JURISDICTION OF HK COURTS. THE

DIFFICULTY WAS TO EXPRESS THE INTENTION IN APPROPRIATE LEGAL

LANGUAGE.

TI

7. IT WAS NOTED THAT ''ACT OF STATE' WAS A COMMON LAW CONCEPT

AND NOT WIDELY UNDERSTOOD EVEN IN THE COMMON LAW SYSTEM. THE

VISITORS MENTIONED THAT IN ADOPTING THE PRC LAW ON ADMINISTRATIVE

LITIGATION PROCEDURES, THE NPC HAD USED THE COMMON LAW CONCEPT OF ''ACTS OF STATE'' TO DESCRIBE DEFENCE AND FOREIGN AFFAIRS.

8. WE POINTED OUT THAT THE CURRENT RESTRICTION WAS THAT THE COURTS COULD NOT QUESTION THE VALIDITY OF ACTS OF STATE, BUT OTHERWISE THEY HAD JURISDICTION OVER CASES WHICH MIGHT TOUCH ON ACTS OF

STATE.

INTERPRETATION OF BL

9. THE DRAFTERS SAID THAT DURING THE CURRENT VISIT THEY HAD NOT

COME ACROSS DISCUSSION ON THE INTERPRETATION OF THE BASIC LAW COVERED BY ARTICLE 157. HOWEVER, THEY HAD SEEN ARTICLES ON THIS QUESTION BY SIMON LI CARRIED BY MING PAO. THEY THOUGHT THAT THE PRESENT DRAFT OF THE ARTICLE WAS A CONSIDERABLE IMPROVEMENT TO

THE PREVIOUS ONE.

10. WE POINTED OUT THAT SOME PEOPLE HAD MISUNDERSTOOD THE ARTICLE

TO MEAN THAT THE NPC STANDING COMMITTEE WOULD HAVE FINAL POWER

TO ADJUDICATE ON CASES INVOLVING INTERPRETATION OF ANY PART OF THE

BL. THIS COULD BE CORRECTED BY MAKING IT CLEAR IN THE TEXT THAT THE

COURT OF FINAL APPEAL WOULD SEEK AN INTERPRETATION FROM THE NPC STANDING COMMITTEE NEXT WORK UNDERLINED ONLY IN RESPECT OF PROVISIONS OUTSIDE THE AUTONOMY OF THE SAR, AND THAT HKSAR COURTS WOULD THEMSELVES APPLY SUCH INTERPRETATION TO THE CASES CONCERNED.

ECONOMIC SYSTEM

11. THE DRAFTERS SAID THEY HAD NOT COME ACROSS MANY COMMENTS ON ARTICLE 107. THERE WERE SOME COMMENTS ON ARTICLE 106, WHICH THEY WERE RECONSIDERING. THERE WERE CALLS TO RELAX THE CONSTRAINTS IN

THE ARTICLE BUT THERE WERE ALSO VIEWS POINTING TO THE OPPOSITE DIRECTION. WE POINTED TO THE PRACTICAL NEED FOR THE SARG TO HAVE FLEXIBILITY IN MAKING UP ITS BUDGETS.

COMMENT

12. THE MAINLAND DRAFTERS WERE RELAXED AND READILY RESPONDED TO

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